People v. Lopez CA2/7 ( 2023 )

Filed 4/5/23 P. v. Lopez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B320125
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA156009)
v.
JESSE MANUEL LOPEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Sean D. Coen and Pat Connolly, Judges.
Affirmed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Kenneth C. Byrne, Supervising
Deputy Attorney General, and Blake Armstrong, Deputy
Attorney General, for Plaintiff and Respondent.
INTRODUCTION
Jesse Lopez pleaded no contest to driving or taking a
vehicle without the owner’s consent, and the trial court ordered
him to pay the victim, Karl Crishon, $940 in restitution. Lopez
argues the trial court abused its discretion by including in the
restitution award three hours of labor by Crishon, a retired
mechanic who fixed the car himself, at the hourly rate charged by
a professional mechanic working at an automobile dealership.
Because there was a factual and rational basis for the court’s
award, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Lopez Drives Crishon’s Vehicle Without Consent, and
Deputy Sheriffs Retrieve It
One evening in September 2021 Crishon parked his car, a
1999 Honda compact crossover SUV, on the street in front of his
house. When he woke up early the next morning, his car was
gone. Crishon went to the police station and filed a report.
That afternoon Los Angeles County Sheriff’s deputies saw
the car, conducted a traffic stop, and identified the driver as
Jesse Lopez. Lopez claimed the vehicle belonged to a friend, but
Lopez suspected it was stolen. After confirming Crishon did not
know Lopez or give him permission to drive his car, the deputies
arrested Lopez and impounded the car. A local police department
later contacted Crishon and told him to come get his car.
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B. Crishon Repairs the Car Himself
Crishon retrieved his car and discovered the ignition
cylinder, floor mats, and tools for replacing a punctured tire were
missing. The glove compartment lock was also damaged. After
learning it would cost $2,090.82 to fix his car at a dealership,
Crishon drove to an automobile junkyard and purchased a jack, a
replacement wheel, a lock for the glove compartment, and an
ignition cylinder, all for $150.1 Crishon spent three hours
installing and replacing the parts in his car.
C. The Trial Court Orders Lopez To Pay Crishon
$940 in Restitution
The People charged Lopez with driving or taking a vehicle
without the owner’s consent (Veh. Code, § 10851, subd. (a)) and
alleged Lopez had a prior serious or violent felony conviction
within the meaning of the three strikes law. (Pen. Code, §§ 667,
subds. (b)-(j); 1170.12.)2 Lopez ultimately pleaded no contest to
the charge, admitted the prior felony conviction allegation (which
the court subsequently dismissed), received a prison sentence of
two years, and was ordered to pay restitution in an amount to be
determined at a later hearing.
At the restitution hearing in April 2022 the People
presented an invoice for repairs from a Honda dealership, which
listed, among other costs, an hourly rate of $185 for the
mechanics to perform the repairs. Crishon testified that the
mileage on his car’s odometer increased 383 miles during the
1 At the restitution hearing Crishon testified the Kelly Blue
Book value of his car was $1,600.
2 Undesignated statutory references are to the Penal Code.
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time the car was not in his possession, that he drove another 25
miles to the auto junkyard, and that he paid $7 for parking at the
junkyard. There is no dispute about these amounts.
Crishon also testified at the restitution hearing he was a
retired equipment mechanic for the City of Los Angeles, where he
spent 26 years “working on cars and trucks.” He stated he
retired in 2016 “at $85 hourly rate with the City,” which was
what he said the City “charged for [his] labor doing repairs.” The
People asked the court to award restitution for the labor costs at
the hourly rate of $185. Counsel for Lopez argued the court
should not award any amount for the time Crishon spent fixing
his car. Counsel argued the court should not use an hourly rate
of $185 because “there were no outlays of expenditure with
regard to his time” and the “$185 rate was never paid to anyone.”
Counsel also argued the court should not use an hourly rate of
$85 because Crishon “was not making that” and, as a retired
mechanic, Crishon did not “lose anything with regard to his time”
by fixing his car.
The trial court judge awarded Crishon a total of $940 in
restitution, which included $555 (3 x $185) for Crishon’s time.
Lopez timely appealed.3
DISCUSSION
Lopez does not dispute he is responsible for the $385 in
non-labor costs court awarded in restitution: $150 for the
replacement parts Crishon purchased to fix his car, $228 for
3 An order requiring the defendant to pay restitution is
appealable. (People v. Ford (2015) 61 Cal.4th 282, 286; Gray v.
Superior Court (2016) 247 Cal.App.4th 1159, 1164.)
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mileage (based on the 2021 Internal Revenue Service mileage
reimbursement rate) for the 383 miles Lopez drove in Crishon’s
car and the 25 miles Crishon drove to obtain the car parts, and $7
for parking at the junkyard. Lopez does dispute the $555 the
court awarded at $185 per hour for the labor cost of replacing
those parts. Awarding restitution based on the hourly rate of
$185, however, was not an abuse of discretion.
A. Standard of Review
The California Constitution ensures all persons “who suffer
losses as a result of criminal activity shall have the right to seek
and secure restitution from the persons convicted of the crimes
causing the losses they suffer.” (Cal. Const., art. I, § 28,
subd. (b)(13); see People v. Martinez (2017) 2 Cal.5th 1093,
1100.) Section 1202.4, subdivision (a)(1), states it is “‘the intent
of the Legislature that a victim of crime who incurs an economic
loss as a result of the commission of a crime shall receive
restitution directly from a defendant convicted of that
crime.’” (See People v. Runyan (2012) 54 Cal.4th 849, 856.)
Section 1202.4, subdivision (f)(3), provides that, “‘[t]o the
extent possible, the restitution order . . . shall be of a dollar
amount that is sufficient to fully reimburse the victim or victims
for every determined economic loss incurred as the result of the
defendant’s criminal conduct.’” (See People v. Giordano (2007)
42 Cal.4th 644, 668-669.) Such economic loss includes “[f]ull or
partial payment for the value of stolen or damaged property. The
value of stolen or damaged property shall be the replacement cost
of like property, or the actual cost of repairing the property when
repair is possible.” (§ 1202.4 subd. (f)(3)(A); see People v. Stanley
(2012) 54 Cal.4th 734, 737; see also People v. Ung (2023)
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88 Cal.App.5th 997, 927 [in addition to “restitution in the form of
returning stolen property,” courts have required “that defendants
pay additional amounts to compensate victims for losses in the
value of the returned property”].) Where, as here, the owner of
the damaged property does the repairs, “rather than hire
someone else to do them,” the owner’s “time [has] value” and is
properly included in a restitution award. (People v. Gemelli
(2008) 161 Cal.App.4th 1539, 1544.) A restitution order,
however, is ‘““not . . . intended to provide the victim with a
windfall.’”” (People v. Nichols (2017) 8 Cal.App.5th 330, 342; see
People v. Millard (2009) 175 Cal.App.4th 7, 28.)
We review a restitution order for abuse of discretion.
(People v. Chhoun (2021) 11 Cal.5th 1, 56; People v. Ung, supra,
88 Cal.App.5th at p. 927; People v. Czirban (2022) 77 Cal.App.5th
1050, 1063.) “We broadly and liberally construe a victim’s right
to restitution, and will find no abuse of discretion so long as there
is a factual and rational basis for the amount of restitution
ordered. [Citation.] When determining whether such as basis
exists, our power . . . begins and ends with a determination as to
whether there is any substantial evidence, contradicted or
uncontradicted, to support the court’s findings.” (People v.
Grundfor (2019) 39 Cal.App.5th 22, 27, internal quotation marks
omitted.) The trial court acts within its broad discretion in
determining the amount of restitution so long as the court
employs “a method that is rationally designed to determine the
. . . victim’s economic loss.” (People v. Giordano, supra,42 Cal.4th at pp. 663-664; accord, People v. Baudoin (2022)
85 Cal.App.5th 1184, 1191; see Ung, at pp. 928-929 [“‘[A]ll that is
required is that the trial court “use a rational method that could
reasonably be said to make the victim whole, and may not make
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an order which is arbitrary or capricious.’’”’]; People v. Shelly
(2022) 81 Cal.App.5th 181, 199 [a restitution order “‘will not be
reversed unless it is arbitrary or capricious’”].)
B. The Trial Court Did Not Abuse Its Discretion in
Calculating the Labor Cost of Repairing Crishon’s
Car at the Hourly Rate of $185
Lopez argues the trial court abused its discretion in
compensating Crishon for the three hours he spent fixing his car
at the hourly rate of $185 because it is not “rational to pay the
victim for his own labor at the rate that would have been charged
him if he had obtained the repairs at the auto dealership.”
Although Lopez argued at the restitution hearing and suggests in
his opening brief the trial court should have awarded $0 in labor
costs because Crishon did not “forgo earned income that he would
otherwise have made had he not devoted the three hours to this
work,” Lopez also argues that the trial court should have
compensated Crishon “at a rate reasonable for his time not the
time of someone else” and that treating “him the same as a
professional would be like figuring the time a layman might take
to clean and dress a skinned knuckle at home at the rate of a
doctor.” In his reply brief Lopez asserts the trial court should
have used an hourly rate of $85, rather than $185. Putting aside
that Crishon was not a layman but a (retired) mechanic, the trial
court did not abuse its discretion in calculating restitution using
the hourly rate of $185.
The People introduced without objection an invoice from a
Honda dealership indicating the dealership charged $185 an hour
for the time mechanics spent making repairs (a rate Lopez does
not argue was unreasonable for Honda mechanics), and Crishon
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testified he spent three hours repairing his car. This evidence
constituted a prima facie showing of an element of Crishon’s
economic loss, which shifted the burden to Lopez to disprove that
amount. (See People v. Shelly, supra, 81 Cal.App.5th at p. 199
[“‘Once the victim makes a prima facie showing of economic
losses incurred as a result of the defendant’s criminal acts, the
burden shifts to the defendant to disprove the amount of the
losses claimed by the victim.’”]; People v. Aguilar (2016)
4 Cal.App.5th 857, 862 [“‘At [a victim restitution] hearing, the
prosecution bears the initial burden of making a prima facie
showing of the victim’s economic loss. Once that showing is
made, the burden shifts to the defendant to demonstrate that the
amount of the loss is other than that claimed by the victim.’”].)
Lopez argues the trial court should have awarded
restitution for Crishon’s repair work at the hourly rate of $85
because that was his last wage rate paid by the city as a
mechanic before he retired. The trial court could have used $85
as an hourly rate for Crishon. But using $185 was not irrational
or illogical. There was no evidence suggesting an hourly rate of
$185 for a mechanic was excessive or unreasonable. The trial
court rationally and reasonably could have concluded that an
hourly rate of $85 was too low or did not reflect the true labor
cost of repair because Crishon’s wage while he was working for
the city was six years old, artificially low because Crishon had
not worked in the private sector, did not include retirement or
other benefits,4 or reflected a different kind of work. And while,
4 Counsel for Lopez asked Crishon if he was receiving a
pension from the City, but the court sustained the prosecutor’s
relevance objection. Counsel for Lopez stated he wanted to use
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as Lopez argues, the evidence supported using an hourly rate of
$85 rather than $185, the trial court’s decision to use $185 was
not irrational. (See People v. Gonzales and Soliz (2011)
52 Cal.4th 254, 295 [“‘[i]f the circumstances reasonably justify the
[trier of fact’s] findings, the reviewing court may not reverse the
judgment merely because it believes that the circumstances
might also support a contrary finding’”]; People v. Garcia (2020)
46 Cal.App.5th 123, 144 [same].) The trial court did not abuse its
discretion in awarding $940 in restitution. (See People v.
Stanley, supra, 54 Cal.4th at p. 737 [a victim restitution order
should be “‘broadly and liberally construed’”]; People v. Frias
(2021) 69 Cal.App.5th 1121, 1123 [“courts broadly and liberally
construe [restitution] provisions in victims’ favor”]; People v.
Selivanov (2016) 5 Cal.App.5th 726, 780 [“‘“‘When there is a
factual and rational basis for the amount of restitution ordered
by the trial court, no abuse of discretion will be found by the
reviewing court.’”’”].)
Crishon’s pension income to calculate Crishon’s current hourly
rate.
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DISPOSITION
The order is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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